Saturday, July 21, 2012

DOABLE CHARTER CHANGE

In my column last week I ended with the suggestion that before
Congress can attempt to touch the substantive provisions of the Constitution,
it should first find a way of settling how Congress will proceed in the light
of the vague amendatory provision of the Constitution.I also said that the opponents of
charter change are probably saying:Let’s see you do it!

If what Speaker Belmonte and Senate President Enrile are saying
about charter change is an indication that there is an atmosphere favoring
charter change in both House and Senate, there may be a way of doing it
quickly.What I wrote about
earlier as a fourth mode of charter change might be the way.What is this fourth mode?

But first, what are the currently discussed and acceptable
modes?The first is charter change
through a constitutional convention.This entails electing a body of representatives distinct from the
Congress. This can be as expensive as supporting a second Congress.The nation is sharply divided
about using it.It also opens up
the entire Constitution for total overhaul, a prospect I myself do not favor.

The second is through “initiative and referendum.”This was tried by Sigaw ng Bayan and the outcome was a disaster.

The third is through Congress in joint session assembled but
voting separately.Congress in
joint session simply converts itself into a constituent assembly.This is how it was done under the 1935
Constitution and it can still be done under the current Constitution if only
House and Senate can agree to use it.But like a constitutional convention, it opens the entire Constitution
for examination and revision.

What I would call the fourth mode is charter change through
Congress doing as two Houses doing it in separate sessions. The two houses can
support a “surgical” mode of change focused only on one amendment.How will this work?

It will work pretty
much like the legislative process.It can start in either House with a bill proposing a focused
amendment.The house where it is
filed threshes is out as it does legislative bills and concludes it with
approval by a three-fourths votes of all the members.The approved bill is next sent to the other house for a
similar processing.Once a
constitutional amendment bill is approved by both houses, it can be sent for
ratification by the people during the next national election.

But where in the Constitution does one find this mode?The element s of this mode are all in
Article XVII.The fundamental
principle is that what is not prohibited by the Constitution, either explicitly
or implicitly, is left to the discretion of Congress provided it can be traced
somehow to the powers of Congress.It is clear from article XVII that the power to propose amendmentscan only be activated by Congress.
The two houses of Congress are not required, as they were under the 1935
Constitution, to be in joint session.Hence, it is quite possible for the two Houses to formulate amendments
the way they formulate laws—as they are where they are. Once one House is
through with a draft, it is passed on to the other House for action.If prohibition there is, it can come
either from the letter of the Constitution (and there is none) or from the
fundamental structure of our constitutional government. Thus, for instance, the
implicit prohibition of joint voting comes from the bicameral structure of
Congress.

Where will the President be in all of this?It is clear that the President is
adamantly opposed to constitutional change now.But it is also clear from the text of the Constitution that
the President has no role in the formulation of amendments except to the extent
that he can influence the members of Congress, as he did in the recent
impeachment exercise.His direct
role will only be in the formulation of the budget needed for the
plebiscite.But if Congress is
truly determined to achieve constitutional change, budgetary problems can be
solved.

This brings us finally to the will and willingness of Congress to
make the change.Are Senate
President Enrile and Speaker Belmonte speaking for their respective houses or
only for themselves?Will all the
members of the House, and not just the famous 188, click their heels and salute
when Belmonte calls for charter change as they did when the President called
for impeachment.Can Enrile
succeed in overcoming the reluctance of the Senate to play in the charter
change game?Can the two of them
coopt the President into their plans?There are as yet no clear answers to these questions.